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COMMONWEALTH v. JOHNSON (11/28/72)

SUPERIOR COURT OF PENNSYLVANIA


decided: November 28, 1972.

COMMONWEALTH
v.
JOHNSON, APPELLANT

Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Sept. T., 1968, No. 1084, in case of Commonwealth of Pennsylvania v. Ollie P. Johnson.

COUNSEL

Michael L. Levy and Jonathan Miller, Assistant Defenders, and Vincent J. Ziccardi, Defender, for appellant.

Milton M. Stein, Assistant District Attorney, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Dissenting Opinion by Spaulding, J. Hoffman, J., joins in this dissenting opinion.

Author: Per Curiam

[ 223 Pa. Super. Page 157]

Judgment of sentence affirmed.

Disposition

Judgment of sentence affirmed.

Dissenting Opinion by Spaulding, J.:

I respectfully dissent.

Appellant contends that, taken together, the charge in this case, which urged the jury to attempt to agree on a verdict,*fn1 and the instructions of the trial court on

[ 223 Pa. Super. Page 158]

    


*fn1 Although not identical in wording the charge constituted an "Allen Charge", Allen v. United States, 164 U.S. 492, 501-2 (1896), which our Supreme Court has now prospectively overruled. Commonwealth v. Spencer, 442 Pa. 328, 275 A.2d 299 (1971), upholding the decision of this Court at 216 Pa. Superior Ct. 169, 263 A.2d 923 (1970).


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